Perhaps without realizing it, most United States-educated lawyers are familiar with Book II.1.13 of Justinian’s Institutes. Here is the relevant excerpt:
Does an animal become yours when it is wounded and ready to be caught? Some jurists thought it became yours at once and stayed yours till you gave up the chase, only then becoming available again to the next taker. Others thought that it became yours only when you caught it. We confirm that view. After all, many things can happen to stop you catching the animal.
This passage is referenced in Pierson v. Post, a New York case from 1805 that most American law students read in their first-year property law course. Pierson v. Post involved a dispute between two hunters over who was the rightful owner of a fox killed on a beach on Long Island: The hunter who first spotted and pursued the fox? Or the hunter who intercepted, captured, and killed the fox? Apart from its usefulness in introducing law students to the complexities of property rights, Pierson v. Post undoubtedly owes its place in the first-year law curriculum to its amusingly old-timey facts (a fox hunt in Long Island!) and the playfully flowery prose employed in the opinions, particularly the dissent (“[W]ho would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together, ‘sub jove frigido,’ or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?”)
The majority opinion cites the Institutes as part of a broader examination of eminent jurists’ views on the question presented:
If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian’s Institutes (lib. 2, tit. 1, sec. 13), and Fleta (lib. 3, ch. 2, p. 175), adopt the principle, that pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by Bracton (lib. 2, ch. 1, p. 8).
Puffendorf (lib. 4, ch. 6, sec. 2 and 10) defines occupancy of beasts ferae naturae, to be the actual corporeal possession of them, and Bynkershock is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.
It, therefore, only remains to inquire whether there are any contrary principles or authorities, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in England, relating to property in wild animals, have either been discussed and decided upon the principles of their positive statute regulations, or have arisen between the huntsman and the owner of the land upon which beasts ferae naturae have been apprehended; the former claiming them by title of occupancy, and the latter ratione soli. Little satisfactory aid can, therefore, be derived from the English reporters.
The court goes on to discuss the views of Barbeyrac and Grotius on the subject. (The dissent would have deferred to custom, arguing that the case “should have been submitted to the arbitration of sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke, Barbeyrac, or Blackstone, all of whom have been cited.”)
Unfortunately, Pierson v. Post may be the first and last time that U.S. law students encounter these jurists in their legal education. Indeed, an explanatory note in my old Property textbook dismisses these authorities as “obscure legal works and legal scholars”! (An online search reveals that another textbook affords them greater respect and attention).
Pierson v. Post was decided not long after New York officially “received” the English common law in the 1786 New York Constitution. That provision, which remains in effect today, states:
Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, and the resolutions of the congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated.
Tellingly, the court in Pierson v. Post did not adopt a cramped view of the common law. It did not limit itself to New York or English precedents only, as if the common law were an insular collection of positive legal rules unique to England and its former colonies. Rather, the court apparently saw no contradiction between examining the decisions of English common law courts while also drawing upon non-English authorities from the natural law and Roman law traditions. To the Pierson court, these traditions were part of the common law, broadly understood.
This should not be surprising. Notwithstanding efforts of liberals and positivists to dismiss the Roman law and natural traditions as alien to Anglo-American jurisprudence, there is, as Adrian Vermeule has observed, a “lost classical tradition in American law” and “American law was steeped in it from the founding era right through the interwar period and beyond.” Pierson v. Post is a case in point, and you need not look hard to find it—it is right there in the first chapter of every American lawyer’s Property textbook.
(Image: Mosaic of a fox hunt, Villa Romana del Casale, Piazza Armerina, Sicily)
